Alternate Dispute Resolution – An answer to protracted legal actions

-Sana N Khan

Of late, the news revealed another instance of delayed justice. ‘Seventy-six-year-old Jeetmal Sakhlecha’s 32-year fight for his rights has finally borne fruit with a recent High court order granting him ownership of a 970 sq ft flat in Dadar’ . This is just one of the plethora of cases still pending in courts waiting for their final hearing. How do the authorities imparting justice expect that announcing a fair decision would always recompense the years that are put in by the interested parties? Constantly, questions have been raised by authorities as well as common public as to what is the solution to these lingering legal proceedings. However, much less was done than said. When the Arbitration Act of 1940 was passed, a lot was expected which ultimately could not be achieved. Further, on advice of Chief Justice of India, the Government of India constituted the Malimath Committee (or Arrears Committee) in 1989. The committee aimed at finding ways that could be applied to reduce and control arrears in the High Courts and other subordinate courts. On the basis of this report and following the guidelines of the UNCITRAL Model, The Arbitration and Conciliation Act 1996 was passed. The Act not only consolidates and provides for commercial arbitration (domestic and international) but also defines and codifies conciliation proceedings. Apart from the Act of 1996, section 89 of the Code of Civil Procedure provides for settlement of disputes through other methods like mediation, negotiation, etc. Also, the Legal Services Authorities Act, 1987 provides for Lok Adalats for speedy trials. The provisions under which arbitration, conciliation and Lok Adalats accrue from lay down that there shall be no hindrances from the laws of India. This clearly shows that the while being a helping hand to courts and litigants, alternate dispute resolution mechanism does not cross legal limits. ? Arbitration: In brief, it is a mechanism for the resolution of disputes which take place usually pursuant to an agreement between two or more parties, under which parties agree to be bound by the decision to be given by the arbitrator according to law or if so agreed, other considerations, after a fair hearing, such decision being enforced by law . The Arbitration and Conciliation Act, 1996 specifies that arbitral tribunals shall not be bound by the CPC or Evidence Act; however, provisions of the Limitation Act, 1963 are applicable on arbitration proceedings. This shows that the Act aims at expeditious proceedings. ? Conciliation: In accordance with the Act of 1996, Conciliation involves the appointment of not more than three conciliators who assist the parties to reach an amicable settlement. Although the Conciliator’s decision alone is not binding on the parties, once the concerned parties and the Conciliator sign the settlement agreement, it has effect of a decree and thus binding under law. ? Lok Adalat (People’s Court): It is defined as a forum where voluntary effort aimed at bringing about settlement of disputes between the parties is made through conciliatory and persuasive means. Lok Adalats have codified recognition under the Legal Services Authorities Act, 1987. They have powers of an ordinary Civil Court and are guided by principles of justice, equity, fair play and natural justice. They have no jurisdiction to decide non-compoundable criminal matters. ? Negotiation and Mediation: As an alternate dispute resolution mechanism, mediation involves a neutral party helping the parties to arrive at a settlement themselves. Its use is escalating in commercial sector, as it is relatively cheap, expeditious and is consensual with the views of the parties themselves. To conclude with, it may be noted that alternate dispute resolution mechanisms are an effective solution to trim down the excessive workload on courts and vindicate the trust in justice.